How a Convicted Polluter, with Help from a Texas Judge, Avoided Paying Back its Victims

Companies accused of poisoning our air and water typically pay a fine then move on, rarely becoming official criminals. If you want to get arrested for spewing something into the air, you're much better off blowing weed smoke on your front porch than benzene from smoke stacks.

But in 2007, a Houston oil company became a rare exception, when it was criminally convicted for polluting the air in Corpus Christi. What does that mean? Not much, it turns out.

It took the Texas judge on the case seven years to hand down a sentence. He imposed a small fine but didn't include money for the victim's medical expenses, reasoning, in part, that figuring out an exact dollar amount would take too long. As a result, the people who waited seven years for their restitution will get no restitution.

Citgo Petroleum, based in Texas but a subsidiary of a Venezuelan corporation, was accused by the Department of Justice of operating two massive oil-water separators with no emission controls of any kind. For 10 years, from the 1990s until 2003, people in the Hillcrest neighborhood were breathing toxic chemicals like benzene.

Most companies facing similar accusations would agree to negotiate with the DoJ in the civil courts and pay a settlement to avoid bad publicity. But Citgo refused. To this day, in fact, Citgo is fighting the government on a technicality, denying that its tanks are oil-water separators. With Citgo unwilling to budge, the case ultimately ended up in a criminal court and was tried before a jury. In 2007, the jurors found Citgo guilty. It was the first time that a corporation has been criminally convicted under the Clean Air Act.

The Feds wanted Citgo to put $25 million into a fund to cover medical and moving expenses for some 800 victims, similar to the $20 billion fund that BP agreed to set aside in 2010 for victim of its massive spill. But on April 30, Judge John D. Rainey ruled that that the victims won't get restitution. He argued it was too hard to prove that their ailments were caused by those specific tanks.

"Air cases are exceptional because it's so hard to prove that that molecule was responsible for that person's illness," explains Melissa Jarrell, a criminology professor at Texas A&M University-Corpus Christi who closely followed the trial.

But he could have had a jury panel figure out an appropriate dollar amount, making the scientific burden of proof lower. He decided against that, though, ruling that doing so would "unduly delay the sentencing process." The need for a speedy ruling "outweighs the need to provide restitution to any victims," he wrote.

This predictably infuriated Bill Miller, a retired Environmental Protection Agency lawyer who worked on the investigation. The ruling, he told InsideClimateNewsrecently, "basically emasculates environmental crime prosecution in the United States completely."

But environmental crime prosecution is already pretty weak. Jarrell, the crimonologist, co-authored a study last month showing that out of 972 environmental crime cases in the United States in the past 11 years, only three percent identified victims of the pollution. The victims were mostly all people who had been killed or immediately injured on the job.

Rainey did agree to fine Citgo $2,045,000.00, a fraction of $2 billion originally requested by the feds.

"We are disappointed in the court's decision, especially for the residents of the community surrounding the refinery who suffered as a result of Citgo's crimes," Wyn Hornbuckle, a Justice Department spokesman, said in a statement. The feds haven't announced yet if they plan to appeal.